Citation Nr: 0216279
Decision Date: 11/13/02 Archive Date: 11/25/02
DOCKET NO. 99-17 909A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to an increased disability rating for plantar
fasciitis, currently rated as 10 percent disabling.
2. Entitlement to an increased rating for the residuals of a
right ankle sprain with malleolar avulsion fracture,
currently rated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
D. Havelka, Counsel
INTRODUCTION
The veteran's active military service extended from November
1982 to October 1990.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1999 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama. That rating decision, proposed to
reduce the disability rating for the veteran's service
connected plantar fasciitis from 10 percent to 0 percent and
denied entitlement to a rating in excess of 10 percent for
residuals of a right ankle sprain and avulsion fracture. The
proposed reduction in rating was effectuated by a July 1999
rating decision.
The case was previously before the Board in January 2001. At
that time the Board restored the veteran's 10 percent
disability rating for his service connected plantar
fasciitis. The Board also remanded the case to the RO for
retrieval of medical records and an examination of the
veteran. The Board now proceeds with its review of the
appeal.
FINDINGS OF FACT
1. In January 2001, the Board remanded the case, in part,
for examination of his feet and right ankle.
2. The RO attempted on several occasions to have the veteran
examined, but he failed to report for the scheduled
examinations.
3. The veteran has not offered any excuses for his failure
to report for the scheduled examinations, nor has he
expressed a willingness to report for an examination.
CONCLUSIONS OF LAW
1. The veteran's claim for an increased rating for plantar
fasciitis must be denied. 38 U.S.C.A. § 5107(a) (West 1991
and Supp. 2002); 38 C.F.R. § 3.655(a)(b) (2002).
2. The veteran's claim for an increased rating for the
service connected residuals of a right ankle sprain with
malleolar avulsion fracture must be denied. 38 U.S.C.A. §
5107(a) (West 1991 and Supp. 2002); 38 C.F.R. § 3.655(a)(b)
(2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107,
5126 (West Supp. 2001). Among other things, this law
eliminates the concept of a well-grounded claim, redefines
the obligations of VA with respect to the duty to assist, and
supersedes the decision of the Court in Morton v. West, 12
Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No.
96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order),
which had held that VA cannot assist in the development of a
claim that is not well grounded. This change in the law is
applicable to all claims filed on or after the date of
enactment of VCAA, or filed before the date of enactment and
not yet final as of that date. 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5126 (West Supp. 2001). See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991). The new law
also imposes a significant duty to assist the appellant with
their claim and to provide them notice of evidence needed to
support the claim. More recently, new regulations were
adopted to implement the VCAA. See 66 Fed. Reg. 45,620
(Aug. 29, 2001) (to be codified as amended at 38 C.F.R §§
3.102, 3.156(a), 3.159 and 3.326(a)).
First, VA has a duty to notify the veteran and his
representative, if represented, of any information and
evidence needed to substantiate and complete a claim. 38
U.S.C.A. §§ 5102, 5103 (West Supp. 2002); 66 Fed. Reg.
45,620, 45,630 (August 29, 2001) (to be codified at 38 C.F.R.
§ 3.159(b)). Information means non-evidentiary facts, such
as the veteran's address and Social Security number or the
name and address of a medical care provider who may have
evidence pertinent to the claim. 66 Fed. Reg. 45,620, 45,630
(August 29, 2001) (to be codified at 38 C.F.R. §
3.159(a)(5)). Second, VA has a duty to assist the veteran in
obtaining evidence necessary to substantiate the claim. 38
U.S.C.A. § 5103A (West Supp. 2002); 66 Fed. Reg. 45,620,
45,630-31 (August 29, 2001) (to be codified at 38 C.F.R. §
3.159(c)).
As discussed below, the RO fulfilled its duties to inform and
assist the appellant on the issue involving increased ratings
for his service connected foot and right ankle disabilities.
Accordingly, the Board can issue a final decision because all
notice and duty to assist requirements have been fully
satisfied.
The RO issued a Statement of the Case in August 1999 which
informed the veteran of the rating criteria for his service
connected disabilities. This document also informed the
veteran that medical evidence was needed to show that he met
the criteria contemplated for each disability rating. In
January 2001 the Board remanded the issues involving rating
the veteran's service connected disabilities. The remand
specifically indicated that the RO was to ask the veteran for
information so that VA could obtain any medical records
showing treatment for his service connected disabilities.
This remand also specifically indicated that VA would order a
medical examination to obtain the medical evidence necessary
to rate the veteran's service connected disabilities. In
February 2001 the RO sent a letter to the veteran and
requested he provide the information related to medical
treatment of his disabilities. The RO also attempted to
retrieve any treatment records from the local VA medical
center, and scheduled the veteran for the required VA
examinations. In July 2002, the RO sent an additional letter
to the veteran. This letter informed the veteran of the
requirements of the VCAA. The veteran has failed to respond
to all of this correspondence.
The VA has attempted to obtain copies of the veteran's VA
medical treatment records and then schedule the veteran for a
VA Compensation and Pension examinations to which he failed
to report. As recently as October 2002 the Board tried to
contact the veteran at his last known address to no avail.
In October 2002 the veteran's representative submitted an
informal hearing presentation which acknowledged that the RO
had complied with the remand and that there was no additional
argument to be made on the veteran's behalf.
The Board finds that VA has done everything reasonably
possible to assist the appellant. A remand or further
development of these claims would serve no useful purpose.
See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which
would only result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran are to
be avoided). VA has satisfied its duties to inform and
assist the appellant in this case. Further development and
further expending of VA's resources is not warranted.
II. Disability Ratings
The veteran filed a claim for increased ratings for his
service connected plantar fasciitis and right ankle disorder
in November 1998, and a VA examination of the veteran was
conducted in April 1999. As a result of this evidence the RO
reduced the veteran's disability rating for his service
connected plantar fasciitis from 10 percent to a
noncompensable (0%) rating. In a January 2001 decision the
Board restored the 10 percent disability rating for the
veteran's service connected plantar fasciitis. The Board
also determined that the medical evidence of record was
inadequate to rate the veteran's service connected
disabilities with respect to his claims for increased
ratings.
The Board remanded the claims for increased ratings in
January 2001 and specifically indicated that the RO was to
ask the veteran for information so that VA could obtain any
medical records showing treatment for his service connected
disabilities. The remand also instructed that VA would order
a medical examination to obtain the medical evidence
necessary to rate the veteran's service connected
disabilities. In February 2001 the RO sent a letter to the
veteran and requested he provide the information related to
medical treatment of his disabilities. The RO also attempted
to retrieve any treatment records from the local VA medical
center, and scheduled the veteran for the required VA
examinations. In July 2002, the RO sent an additional letter
to the veteran. This letter informed the veteran of the
requirements of the VCAA. The veteran has failed to respond
to all of this correspondence.
The veteran has essentially disappeared. The last
communication from the veteran was received in September
1999. This letter contained the last known address of the
veteran and VA has attempted to contact him at this address
to no avail. The veteran has failed to report for scheduled
examinations and failed to respond to the requests for
information made by the RO. The veteran's own representative
is apparently unable to contact him. In a statement dated in
October 2002, the veteran's own representative admits that
the "record reveals that the originating Agency followed the
instructions contained in the remand. However, the veteran
failed to provide any additional medical evidence or appear
for his scheduled VA examination." In October 2002 the
Board attempted to contact the veteran at his last known
address. However, the letter was returned to the Board by
the United States Postal Service.
In Hyson v. Brown, the United States Court of Veterans
Appeals stated that, "[i]n the normal course of events, it is
the burden of the veteran to keep the VA apprised of his
whereabouts. If he does not do so, there is no burden on the
part of the VA to turn up heaven and earth to find him."
Hyson v. Brown, 5 Vet. App. 262, 265 (1994).
In reaching this determination, the Board notes that the RO
fulfilled its statutory duty to assist the veteran in
developing facts pertinent to the claim by attempting to
obtain relevant medical evidence necessary for an equitable
disposition of the veteran's appeal. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2002). The
Board is able to find as fact that the RO attempted to notify
the veteran and his representative of the date and time of
the scheduled VA examinations. Under the applicable
criteria, when an examination was scheduled in conjunction
with a claim for increase and a claimant, without good cause,
fails to report for such examination, or re-examination, the
claim shall be denied. Examples of good cause include, but
are not limited to, the illness or hospitalization of the
claimant, or the death of an immediate family member. 38
C.F.R. § 3.655(a) & (b) (2002).
In the instant case, it is noted that the veteran is service-
connected for plantar fasciitis and a right ankle disorder
and that the evidence of record was inadequate to rate these
disabilities in light of the claim for increased ratings.
Therefore, he was scheduled for another VA examination and he
failed to report for the examination. The evidence of record
reveals that the veteran has failed to respond to attempts to
contact him at his last known address and has failed to
inform either VA or his representative of any new address.
There is simply no practical way for VA to contact the
veteran at the present time, and continued attempts to do so
would be a waste of time.
After a review of this record, it is found that entitlement
to an increased ratings for plantar fasciitis and the
residuals of a right ankle injury have not been shown.
"[T]he duty to assist is not always a one-way street. If a
veteran wishes help, he cannot passively wait for it in those
circumstances where he may or should have information that is
essential in obtaining the putative evidence." Wood v.
Derwinski, 1 Vet. App. 190, 193 (1991). The veteran has
apparently disappeared. He has failed to respond to
correspondence mailed to his last reported address. He has
failed to report to a scheduled VA Compensation and Pension
examination and failed to respond to VA's requests for
information. He has provided no good cause for his refusal
to cooperate. Therefore, it is concluded that VA has made
every effort to obtain the requested information; the
inability to obtain this information has been solely the
result of the veteran's refusal to cooperate. Under the
circumstances, 38 C.F.R. § 3.655(b) (2002) directs that the
claims for increase shall be denied.
ORDER
An increased rating for plantar fasciitis is denied.
An increased rating for the residuals of a right ankle sprain
with malleolar avulsion fracture is denied.
C.W. Symanski
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.